Minnesota Canal & Power Company v. Pratt
| Decision Date | 07 June 1907 |
| Docket Number | 14,917 - (148) [2] |
| Citation | 112 N.W. 395,101 Minn. 197 |
| Parties | MINNESOTA CANAL & POWER COMPANY v. ISAIAH PRATT and Others |
| Court | Minnesota Supreme Court |
In the district court for St. Louis county the Minnesota Canal & Power Company filed its petition to condemn certain property.
Parts of the petition are quoted in the first opinion. The works necessary to accomplish petitioner's purposes and described at length in the petition comprised the Birch lake reservoir, the Kawishiwi reservoir, the Isabelle reservoir and such other reservoirs in the Birch lake drainage basin as shall hereafter be found desirable and necessary, the Embarrass river canal, the St. Louis river canal, a power house and machinery on St. Louis bay for the generation and distribution of electricity, pipes for delivering water from the St. Louis river canal at Duluth to said power house and the water wheels therein, transmission lines for distributing such electricity to users thereof, pipe lines for delivering water to consumers thereof and chutes for delivering logs lumber and forest products from said St. Louis river canal into the Bay of St. Louis.
On the return day of the notice different defendants appeared and moved that the petition be dismissed. From an order of Cant J., dismissing the petition, in which it was stated that the motions were treated by all the attorneys as in effect demurrers to the petition on the ground that it did not state facts sufficient to constitute a cause of action, petitioner appealed. Affirmed.
Eminent Domain -- Public Service Corporation.
R.L. 1905, § 2841, authorizes certain corporations to condemn such private property as may be necessary or convenient for the transaction of the public business for which they may be formed under such statute. Held, that the term "public business," as so used, includes the construction of works for supplying the public with water, light, heat, and power.
Eminent Domain -- Electric Power.
R.L. 1905, §§ 2841, 2842, 2926, 2927, conferring the power of eminent domain on public service corporations for specified purposes, authorizes the exercise of such power in aid of the construction of canals and reservoirs to be used to create and distribute electric power for general public use.
Eminent Domain -- Interference with Navigable Waters.
A public service corporation, although authorized to condemn private property for the construction of canals and reservoirs for the generation of electric power, may not exercise such power when the particular enterprise contemplates an interference with the navigable capacity or navigation of any of the navigable waters of the state, unless such interference is expressly authorized by statute.
Government Control.
Public service corporations, organized and existing under the authority of the state, authorized to exercise the power of eminent domain, thereby become subject to governmental regulation and control.
Government Control. -- Not a Condition Precedent.
Where a public service corporation was organized to furnish water, light, heat, and power for public use, and, being authorized to exercise the power of eminent domain, became subject to state regulation and control, the actual exercise of the state's power to regulate and control such corporation did not constitute a condition precedent to the use of its power of eminent domain; the state being authorized to pass such regulatory measures as the future business of the corporation might require.
Franchise or Contract Not a Condition Precedent.
Where a public service corporation was authorized to furnish water, light, heat, and power for public and private use, it was not necessary that it should have first obtained a franchise from a municipality or a contract to furnish a city or village with its products before it was entitled to exercise its power of eminent domain, conferred by R.L. 1905, §§ 2841, 2842.
State Control of Navigable Streams.
In the absence of the exercise of power conferred by the federal government over navigable streams within the states, incident to its power to regulate commerce, the states have full power over such waters within their jurisdiction.
Federal Control of Navigable Streams.
Navigable waters entirely within the limits of a state are subject to the same control by the federal government as those extending through or reaching beyond the limits of the state.
Water Power -- Petition to Condemn -- Pleading.
In a proceeding to condemn land in aid of an enterprise which requires the construction of dams, reservoirs, and canals for the purpose of creating a water power with which to generate electric power for public use, the petition for the appointment of commissioners alleged facts which, if true, justify the conclusion that the works, when completed, would not materially interfere with the navigation of the waters to be affected thereby. Motions by various landowners to dismiss the petition were treated by the trial court as demurrers. Held that, assuming the allegations of the petition to be true, the contemplated use of the public navigable waters is not forbidden by the laws of the state.
Concurrent Control of Navigable Streams.
Act Congress March 3, 1899, c. 425, §§ 9, 10, (6 Fed. St. Ann. 805), requiring the consent of the secretary of war on the approval of the chief of engineers to the construction of public works in any navigable waterway within the United States, does not transfer exclusive control over navigable waters entirely within the limits of a state to the federal authorities; but the right of private persons to erect structures in such waters is dependent upon the concurrent or joint consent of both the state and federal governments.
Consent of Federal Government.
Under such act a public service corporation should not be permitted to exercise the power of eminent domain in furtherance of an enterprise involving an interference with navigable waters within the state without having first procured the approval of its plan by the officers of the federal government.
International Comity.
The use and control of waters lying within the geographical boundaries of the United States is not restrained by international comity.
Treaty is a Municipal Law.
A treaty entered into by the United States in accordance with constitutional requirements, which is operative by its own force, constitutes a municipal law, binding upon the federal and state courts, as well as an international contract.
Violation of Treaty Provisions.
A substantial diversion of the waters forming a part of the international boundary between the United States and Canada would constitute a violation of the Webster-Ashburton Treaty, 1842, art. 2, declaring that all water communication from Lake Superior to Lake of the Woods, etc., shall be free and open to citizens of both countries. Act of Congress of March 3, 1899, c. 425, reserves to the United States control over navigable waters within the states, subject to the conditions expressed in the statute. The act does not affect or in any respect modify the treaty. It merely authorizes the secretary of war to determine whether any contemplated enterprise will divert the waters or otherwise improperly affect navigation. If congress in the manner provided by this act approves an enterprise, the question of the violation of the treaty thereby is no longer for the consideration of the courts, as a subsequent act of congress, if inconsistent with the terms of an existing treaty, abrogates the treaty, so far as the courts or citizens of this country are concerned.
O. H. Simonds, C. O. Baldwin and W. L. Penfield, for appellant.
Under the statutes of Minnesota, as they existed before the revised laws of 1905 went into effect, the right of eminent domain for the construction of a canal for any purpose, other than that of navigation, did not exist. The revised laws of 1905 materially amended the laws in this respect. G.S. 1894, § 2592, is repealed, and R.L. 1905, § 2841, is substituted. G.S. 1894, § 2604, Laws 1901, c. 360, is repealed, and R.L. 1905, §§ 2842, 2926, are enacted in its stead. G.S. 1894, § 2385, is expressly repealed and we have in lieu thereof R.L. 1905, § 2550. The word "canals" in R.L. 1905, § 2927, indicates clearly what the legislature meant by the broad language used in sections 2841 and 2842 of that revision.
Under the statutes of the United States, the construction of dams and the diversion of water, as proposed by appellant, may be authorized by the chief of engineers and the secretary of war. River and Harbor Act of March 3, 1899, §§ 9, 10.
The questions of the Webster-Ashburton treaty and of the comity of nations are political questions within the exclusive cognizance of the United States government. This is not the forum to which the decision of the questions belongs. If the enterprise of the petitioner is in contravention of the Webster-Ashburton treaty, it is so by virtue of the subsequent act of congress of March 3, 1899. The act of congress being the last expression of the sovereign will, it must control. Cooley, Const. Law, 32; Chae Chan Ping v U.S., 130 U.S. 581. The petitioner contends that the authorized diversion of the waters would not infringe the treaty of 1842; but "the question whether our government is justified in disregarding its engagements with another nation is not one for the determination of the courts." Taylor v. Morton, 2 Curtis, 454, 459; Knox v. Lee, 12 Wall. 457. Neither rights of private property nor personal rights are vested under or guarantied by art. 2 of the Webster-Ashburton treaty. British or Canadian governmental rights or claims do not properly belong to the consideration of this court. Canadian private or corporation...
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